Why should the Supreme Court care about software patents?

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Could a patent infringement case that has the deep-fryer industry sizzling really have a chilling effect on software development? That’s the claim made by Columbia Law School’s Eben Moglen, who said the U.S. Supreme Court’s forthcoming decision in the Global-Tech Appliances v. SEB dispute could stifle innovation and impede progress.

“Merely by writing software, a developer might become vulnerable to an inducement claim; the patentee would only need to allege some vague awareness of neighboring patents,” Moglen wrote in an amicus brief to the court. “If contributing to a free software project exposes the contributor to uncertain risk, fewer will contribute, producing less incremental improvement and innovation for the public’s benefit.”

The problem hinged on a deep-fryer design that was reverse-engineered from a patented model. The company subsequently handed blueprints to a patent lawyer and asked for a search to make sure it did not infringe an existing patent—leaving out the crucial detail that the appliance had, in fact, been derived from another. The patent search was unsuccessful, the fryer went to market, and the company whose model it was based on sued. The debate now focuses on United States Code 271(b) (“Whoever actively induces infringement of a patent shall be liable as an infringer”), and whether willful blindness or actual knowledge of a preexisting intellectual property claim determines liability.

“Didn’t we take this case to determine whether or not deliberate indifference is the standard?” asked Justice Kennedy during a Supreme Court session on Feb. 21.

Chief Justice John Roberts asked, “I don’t think it’s true with deep fryers, but in some areas, you almost always know you’re going to hit something, that given the nature of the industry, you’re going to infringe something. Is that enough?”

In the semiconductor industry, there are some 420,000 patents, making it next to impossible to ensure there won’t be a patent infringement, it was noted. “That is very, very true, Your Honor,” replied the counsel for Global-Tech Appliances. “And even in the deep-fryer industry, it is going to be different, because there’s very few—I mean, compared to semiconductors…”

“Well, we’re not going to adopt a special rule for the deep-fryer industry,” quipped Justice Antonin Scalia to courtroom laughter.

“I think Moglen may have overreacted,” said Michael Barclay, a fellow at the Electronic Frontier Foundation in San Francisco who does volunteer work writing amicus briefs for the organization. “I was surprised they granted cert in this case. This case is kind of fact-specific for Global Tech. There aren’t a lot of inducement cases that trigger on this level of knowledge.”